John Z. Lee
Donald Trump’s presidential campaign is slated to be in federal court in Chicago after Election Day in a battle over what two disgruntled citizens allege was mobile spam.
U.S. District Judge John Z. Lee has scheduled a status hearing for Nov. 29 in a lawsuit accusing the campaign of violating a federal law that bars sending text messages to unwilling recipients.
The plaintiffs received messages on their cellphones from Donald J. Trump for President Inc. urging them to “subscribe” to the Republican nominee’s campaign and “help Make America Great Again!”
The plaintiffs contend the campaign violated Section 227(b) (1)(A)(iii) of the Telephone Consumer Protection Act.
That provision prohibits sending text messages using an automatic telephone dialing system to wireless phones without the recipients’ consent.
The Trump campaign counters that the provision runs afoul of both the First Amendment and the equal protection clause.
In a memorandum filed in support of its motion to dismiss the suit, the campaign noted that the provision bars sending autodialed texts to wireless numbers unless they are made to collect a debt owed to or guaranteed by the federal government.
The Federal Communications Commission has used powers granted to it under the Telephone Consumer Protection Act to exempt other texts from the prohibition on autodialed texts, the memorandum says.
It says banks and other financial institutions may send such texts to warn of possible data breaches or instances of fraud or identity theft.
Health-care providers also are exempted from the ban on unsolicited, autodialed text messages to cellphones, the memorandum says.
Providers, it says, may send such texts reminding patients of appointments, informing them of lab results, notifying them of prescription refills or giving them pre-operative instructions.
But while the FCC has accommodated banks and health-care providers, it has not offered similar concessions to political campaigns, the memorandum says.
Under these circumstances, it contends, the provision barring unsolicited, autodialed text messages is unconstitutional.
“It abridges freedom of speech and denies equal protection by impermissibly discriminating on the basis of content — favoring speech about government debts, banking and health care over speech about other subjects (such as politics),” the memorandum says.
But the plaintiffs reject the notion that the restriction on text messages violates the U.S. Constitution.
“The [Telephone Consumer Protection Act] does not target any particular ideas, messages or viewpoints,” the plaintiffs’ lawyers wrote in a response to the motion to dismiss the suit.
“Rather, it is aimed at preventing text spammers from invading privacy and converting the property of others without their consent, while still allowing texts and calls to be made to those who agree to receive them.”
The federal government is weighing the possibility of intervening in the case to defend the constitutionality of Section 227(b)(1)(A)(iii).
Lee has set a Nov. 22 deadline for the U.S. Justice Department to intervene.
Attorneys representing the plaintiffs include Phillip A. Bock of Bock & Hatch LLC and Joseph J. Siprut of Siprut P.C.
In an e-mail, Siprut contended the Trump campaign is trying to avoid answering for its conduct until after Trump faces the voters.
“My view is that the pending motion to dismiss is principally a delay tactic, designed mostly to kick the case down the road until after the election,” Siprut wrote.
The lead attorney for the Trump campaign, Martin W. Jaszczuk of Locke Lord LLP, could not be reached for comment.
The lead attorney for the federal government is Baily W. Heaps of the Justice Department in Washington, D.C.
In March, Joshua Thorne of Cook County and David Roberts of Aurora received texts on their cellphones from the Trump campaign seeking donations.
Both men say they did not provide their phone numbers to the campaign or give it permission to send them text messages.
They filed separate suits against the campaign that later were consolidated into one action.
Thorne and Roberts are seeking to pursue the suit as a class action on behalf of everyone who received unsolicited, autodialed text messages from the Trump campaign within the past four years.
Thorne and Roberts allege the unwelcome texts cost recipients money in the form of charges for the texts or a deduction from the allocation under their text-messaging plan.
Sending the unsolicited texts also violated recipients’ right to privacy, Thorne and Roberts maintain.
The case is Joshua Throne, et al. v. Donald J. Trump for President Inc., No. 16 C 4603.